1. The petitioners here, seven in number, were charged with a number of other persons with assault and rioting. Certain of their co-accused were acquitted and the remaining seven, having passed through the lower Appellate Court obtained this Rule from our predecessors of a somewhat limited character. The Bench issued the Rule on grounds Nos. 1 and 2, ground No. 1 being based on the suggestion that there was some impropriety on the part of the trial Court in allowing certain of the prosecution witnesses to be subjected to cross-examination as they had proved hostile. It was argued, I think, that there was no clear indication as to why this was done and that the Judge or Magistrate taking this course must only do so in the exercise of a discretion which is a judicial one.
2. As my learned brother pointed out, it was found in the record that before the prosecution witnesses were turned into hostile witnesses and subjected to cross-examination, there had been a number of petitions before the Court on the point, and there is no doubt that the lower Appellate Court did consider this question very carefully because on the last page but one of the lower Appellate Court's judgment the cases of all these prosecution witnesses were gone into by the learned Judge and it may be worth while to quote what he said on this point.
It is a peculiar feature of the present case that no fewer than five of the prosecution witnesses had to be declared hostile during the trial. They are P.W's Nos. 5, 6, 16, 17 and 19. Prosecution Witness No. 5 war obviously anxious to secure an acquittal for Delbar Mandal. Prosecution Witness No. 6 demonstrably tampered with the truth. Prosecution Witnesses Nos. 16 and 17, the dafadar and the chowkidar gave evidence which appears to have been designed to save themselves; while P.W. No. 19 was anxious for himself as being the servant of the man in whose shop one of the Constable's pagris was recovered.
3. Those seem to me to be excellent reasons as to why the trying Magistrate should have adopted the course he did. It is quite obvious that the discretion which is given to Judges with regard to interrogating witnesses who go back on the original story which either side is informed that they are going to depose to before the Court, is in the interest of public justice. Witnesses who do take action such as this either do so from game interested motive or for the purpose of saving their own reputation. It may be, of course, and this has always to be guarded against, that these witnesses were actually bought over. In that case they have to have their evidence very severely tested and it can only be done by cross-examination.
4. The second point which was made by the learned Advocate in support of the Rule was this: that whilst the cross-examination was going on improper questions were put to these witnesses, in cross-examination, questions which were contrary to the spirit of Section 162 of the Code of Criminal Procedure, that well-known section which is designed to exclude statements made to the Police. The questions appear to have taken this form: 'Did you not say to the Police such and such a thing?' 'Did you not make such and such a statement to the Police or something like that?' and the curious thing about this is that the answer was always in the negative. The answer was always 'No'.
5. Now it seems to me that the position created does not constitute an actual infringement of Section 162 as Section 162 is, as I have already indicated, designed to keep out evidence which it is suggested is not of a free and of a fair nature but may have been induced by some form of Police duress. But it seems to me that it is stretching the principle a very long way to say that the trial and conviction of certain persons must be vitiated, because an unsuccessful attempt made by a Government Prosecutor anxious to put his whole case before the Court, so to speak, fringes on a technical breach of this rule. It may not be altogether improper for me to say that I never really realise the importance or necessity of this exclusion because in my experience as a Judge, the exclusion of this Police evidence is valuable only to protect the guilty man and hardly ever to protect the innocent.
6. In all the circumstances of this case we think that no case has been made out to permit us to make this Rule absolute and for the reasons I have adduced, it will be discharged. Petitioners Nos. 2 to 7 must surrender to their bail bonds and serve out the sentences imposed upon them.
7. Henderson, J. --I agree.